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2007 DIGILAW 203 (JHR)

BAJRANGI DAS v. STATE OF BIHAR

2007-03-26

D.P.SINGH

body2007
Judgment : D. P. SINGH, J. ( 1 ) SOLE appellant Bajrangi das stands convicted for the offences punishable under Sections 304, Part-I and 324 of the Indian Penal Code and sentenced to serve rigorous imprisonment for seven years and to pay a fine of Rs. 1,000 in default thereof to further undergo simple imprisonment for two months, and one year respectively, by the 5th Additional Sessions judge, Giridih in Sessions Trial No. 75 of 1995. ( 2 ) BRIEF facts leading to this appeal are that in the night of 11. 12. 1994 at about 9. 00 p. m. , deceased Bishun Das was taking his meal in his house when the appellant came and demanded some money for drinks. As further stated, when the deceased refused the money, the appellant assaulted him with a dagger resulting in his death. The informant and their mother tried to intervene were attacked with the dagger by the appellant resulting in sharp cut injuries. The informant raised alarms on which witnesses started arriving, in the meantime, the appellant fled away. ( 3 ) THE informant and his mother were taken to Giridih Sadar Hospital for their treatment where Giridih Police arrived and recorded the statement of PW 10 Prabhu das in the hospital. Thereafter Giridih Police registered Giridih Police Station Case no. 286 dated 11. 12. 1994 under Sections 302, 307, 326 and 324 of the Indian Penal code against the appellant and started investigating the case. The dead body was sent for post-mortem examination after preparing inquest report. The police finally submitted charge-sheet against the appellant. The trial of the appellant was committed to the Court of Sessions where he was charged for offences under Sections 302 and 307 of the Indian Penal Code. The appellant pleaded not guilty and claimed false prosecution. It was also asserted that he was a juvenile though the trial Court did not find him juvenile and this plea was also rejected by this Court. The appellant was ultimately found and held guilty for the offence under sections 304, Part I and 324 of the Indian penal Code and sentenced to serve rigorous imprisonment as stated above. ( 4 ) THE present appeal has been preferred mainly on the grounds that the appellant though innocent has been involved in this case out of enmity. The appellant was ultimately found and held guilty for the offence under sections 304, Part I and 324 of the Indian penal Code and sentenced to serve rigorous imprisonment as stated above. ( 4 ) THE present appeal has been preferred mainly on the grounds that the appellant though innocent has been involved in this case out of enmity. It is also asserted that none of the eyewitnesses are probable and reliable. According to Mr. Tarun Kumar sinha, learned counsel appearing for the appellant, no independent witness has been examined and the chain of circumstances falsified the prosecution case. Mr. Sinha, further submitted that the fardbeyan was recorded by the police belatedly though the first Information Report has been conceded as the Investigating Officer has admitted in his evidence that he has arrived at the place of occurrence prior to recording to the fardbeyan. It was also asserted that even the eyewitnesses contradicted each other on vital points. Much has been stressed regarding the manner in which investigation was performed showing that the appellant though innocent has been convicted wrongly. It is also submitted that the prosecution has failed to prove any charge under Section 324 of the Indian Penal Code in absence of the injury report. ( 5 ) I have considered the submissions along with the materials available on records. The prosecution has examined altogether fourteen witnesses in this case, out of which PW1 Ruplal Das and PW 2 Jai narayan Ram have been declared hostile pw 11 is the doctor, who conducted the postmortem examination on the dead body of bishun Das and proved the same as Ext. 2. According to this post-mortem report, death has occurred between 18. 00 to 24. 00 hours prior to post-mortem examination due to external injury, spindle shaped, transverse cut in front of neck between thyroid cartilage and supra external which was trachea deep. This witness was cross-examined at length suggesting options how this injury may have been caused etc. Even on recall, it was suggested to this witness that such knife blow with blade of three inches is not possible. PW 12 is the Investigating Officer, who was suggested that he has prepared a belated statement of PW 10 Prabhu Das just to implicate the appellant. He has been criticized by Mr. Sinha on the point that he did not mention the station diary entry nor in the case diary. PW 12 is the Investigating Officer, who was suggested that he has prepared a belated statement of PW 10 Prabhu Das just to implicate the appellant. He has been criticized by Mr. Sinha on the point that he did not mention the station diary entry nor in the case diary. Mr. Sinha, further criticized this witness on the point that he did not prepare the inquest report nor seized any blood-stained soil, blows etc. from the place of occurrence though having visited it prior to the recording of the fardbeyan. The Investigating Officer of this case has admitted before the lower Court that having received information that some incident has taken place in village Sirodih and he went there to learn that the injured persons have been referred to Giridih Sadar Hospital. Therefore, he returned to record the statement of the injured person PW 10 after 10. 00 p. m. in the night. He recorded the fardbeyan registered the case and then again went back at the place of occurrence to prepare the inquest report. He thereafter started investigation of the case, examined witnesses and sent the dead body for post-mortem examination. He has admitted that he arrested the appellant on 13. 12. 1994. Some minor contradictions have been obtained from this witness regarding pw 7 and PW 8 as well as PW 14. However, these contradictions do not make much difference in view of the consistent evidence of the eyewitnesses, PW 3, PW 4, PW 5, PW 6, PW 7, PW 8, PW 10, PW 13 and PW 14. ( 6 ) PW 10, informant Prabhu Das examined by the Investigating Officer at 10. 00 p. m. , same day 11. 12. 1994 in Giridih Sadar hospital. He has supported his statement in the trial Court stating clearly that at about 9. 00 p. m. , deceased has returned from dhanbad and was taking food in the house, then appellant came and asked money for wine. According to him, when the deceased refused to part with money he was dragged outside the room and attacked with dagger on the neck. This witness has further asserted that when he tried to intervene, he was given dagger blows on his neck and armpit. This witness was admitted in giridih Sadar Hospital, which has been supported by many of the witnesses including the Investigating Officer who recorded the statement at 22. This witness has further asserted that when he tried to intervene, he was given dagger blows on his neck and armpit. This witness was admitted in giridih Sadar Hospital, which has been supported by many of the witnesses including the Investigating Officer who recorded the statement at 22. 00 hours in the hospital. Learned counsel has further criticized this version on the grounds that the doctor has not been examined to support that the informant has actually received any dagger injury. The learned trial Court has considered this aspect and held that the prosecution has failed to prove the charge under section 307 of the Indian Penal Code against the appellant but sufficient materials have been brought on record through Ext. 6 and ext. 7 series showing that PW 8 and PW 10 had received injuries on their persons when they were examined in Giridih Sadar Hospital. PW 4 Mukta Das is neighbour, PW 5 bulwa Devi is wife of the deceased, PW 6 nunu Ram Das is father, PW 8 Chandri devi, is mother, PW 10 is brother while PW 7 and PW 13 are neighbours who came at the spot after hearing hulla raised by the informant. All of them have consistently asserted that the appellant was seen by them assaulting the deceased with dagger and neighbours asserting that they saw the deceased fallen on the ground with bleeding injuries in his neck. They have further asserted that the appellant was seen by them fleeing away from the place of occurrence. ( 7 ) LEARNED counsel for the appellant criticized the evidence of PW 3 Arjun Das being brother-in-law of the deceased that he was not a probable witness as he has admitted that his house was situated at a distance from the place of occurrence. It has also been pointed out that this witness has admitted during cross-examination that PW 5, wife of the deceased, was not present at the house where the incident took place. Learned counsel further criticized the evidence of PW 6, the father of the deceased, being unable to see the occurrence in the night at some distance. PW 7 was criticized on the ground that she was having enmity with the appellant whereas PW 14 Charka ram was criticized that he was not named as witness by the police. ( 8 ) I have gone through the statements of these witnesses minutely. PW 7 was criticized on the ground that she was having enmity with the appellant whereas PW 14 Charka ram was criticized that he was not named as witness by the police. ( 8 ) I have gone through the statements of these witnesses minutely. PW 3 and PW 5 have not contradicted each other on point that the deceased was assaulted by the appellant in their presence. PW 3 has admitted that the house of the deceased and this witness was situated in same village. This witness has specifically stated vide paragraph 9 that when the incident took place his sister PW 5 was present at the spot. Quite naturally when her husband has returned she must be present at the house. PW 6, PW 7 and PW 14 are natural witnesses to be present at the alleged time of occurrence in their house, which is common. Furthermore, I do not find any reason on record to implicate falsely the appellant in this case because nowhere during cross-examination by defence, the witnesses have been suggested due to particular enmity or dispute between the informant and the appellant, this false implication was probable. The defence has suggested that the deceased was killed somewhere by someone unknown and the dead body was brought in the house by the informant to implicate the appellant falsely in this case. It appears farfetched and afterthought because if only the false implication was the purpose wherever the dead body was located, the prosecution may have created the story suitable to their design. The suggested movement of dead body from one place to this house is also not probable in view of the statement of PW 12 that he found blood-stained soil, cloths etc. at the place of occurrence. All the witnesses have denied that there was any enmity between the family of the deceased and the family of the appellant PW 4 Mukta das is an independent witness of the occurrence. He has stated that he saw the appellant standing in the angan of the deceased and altercation taking place between the deceased and the appellant on demand of money. After which, the appellant assaulted the deceased with the dagger on his neck. He further asserted in cross-examination that at that time PW 5, PW6, PW 7, PW 8, pw 10 and PW 14 were present. After which, the appellant assaulted the deceased with the dagger on his neck. He further asserted in cross-examination that at that time PW 5, PW6, PW 7, PW 8, pw 10 and PW 14 were present. My attention was drawn towards the minor contradictions in the evidence of this witness as to who were examined by the police, who have come and remained till what time in the house etc. which is of no consequences nor affecting the merit of the case, PW 5 was much clear that how the deceased has come back from job and what happened when the appellant started demanding money for drinks. The trend of the cross-examination of these witnesses on the point of assault, presence of witnesses or actual overt-act being not disproved by the appellant. ( 9 ) THE laches on the part of the Investigating Officer not mentioning the entry in the station diary nor in the case diary, collecting the blood-stained soil from the place of occurrence and sending it for forensic report does not make much difference in view that almost all eyewitnesses have supported each other on the point that appellant assaulted the deceased with dagger resulting in his death. I do not find any reason to disbelieve it. The learned trial Court has considered and discussed all these facts at length vide paragraphs 19 to 30. The learned trial Court has further came to conclude that the evidence of PW 4, PW 6, PW 8 and PW 10 consistently made out a case that the death of Bishun Das resulted due to assault made by the appellant on his neck vide paragraph 43 of the impugned judgment. I find that the reasons given by the learned trial Court are proper based on evidence, and do not require to be interfered. ( 10 ) IN the facts stated above, I find and hold that the prosecution in the present case has been able to prove beyond doubt that the appellant has assaulted the deceased with dagger resulting in his death. ( 11 ) IN the result, the conviction of the appellant along with sentence passed by the learned trial Court against him is hereby affirmed and the appeal is dismissed. The bail bond of appellant Bajrangi Das is hereby cancelled and he is directed to surrender forthwith before the Court below for serving out the sentence. ( 11 ) IN the result, the conviction of the appellant along with sentence passed by the learned trial Court against him is hereby affirmed and the appeal is dismissed. The bail bond of appellant Bajrangi Das is hereby cancelled and he is directed to surrender forthwith before the Court below for serving out the sentence. The learned Court below is also directed to take all coercive steps in accordance with law for the apprehension of appellant to serve out the sentence. Appeal dismissed. --- *** --- .